Would suspending a driver's license before a hearing, for refusing or failing an alcohol test, have violated due process under two bills the Maryland legislature was considering in 1983?

Plain-English summary

Two members of the Maryland House of Delegates asked the Attorney General whether two competing bills, Senate Bill 508 and House Bill 1333, both authorizing administrative suspension of a driver's license for refusing a chemical alcohol test or testing over the legal limit, deprived drivers of property without due process of law. Senate Bill 508 would have made the suspension effective immediately, with a hearing available only afterward, while House Bill 1333 would have issued a temporary permit to keep the driver on the road pending a hearing. Applying the Supreme Court's three-factor due process balancing test from Matthews v. Eldridge, and relying heavily on the Supreme Court's 1979 decision in Mackey v. Montrym upholding a similar Massachusetts law, the opinion concluded that both Maryland bills generally satisfied due process, given the state's compelling interest in highway safety, the relative reliability of a sworn police officer's report as the basis for suspension, and the availability of a prompt post-suspension hearing. The opinion nonetheless flagged specific problems: Senate Bill 508's hearing could be delayed up to 30 days after a request, longer than the Supreme Court's Mackey decision had approved, and its wording appeared to deny appeal rights to drivers whose suspension was modified rather than left unchanged; House Bill 1333, meanwhile, let a driver present evidence at a hearing but then required the suspension to continue regardless of that evidence if the driver had in fact refused the test or failed it, making the opportunity to present evidence effectively meaningless.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion's own editor's note reports that neither Senate Bill 508 nor House Bill 1333 was actually enacted, so the specific bill language analyzed here never became Maryland law. Maryland's implied consent and administrative license suspension statute, now found in Tr §16-205.1, has been substantially rewritten multiple times since 1983, and due process case law on license suspensions has continued to develop. Verify the current version of Tr §16-205.1 and current constitutional case law before relying on any specific procedure or timeline described here.

Common questions

Could Maryland suspend someone's driver's license before they got a hearing, just based on a police officer's sworn report that they refused or failed an alcohol test?
According to this opinion, yes, consistent with due process, so long as a prompt post-suspension hearing was available. The opinion relied on the U.S. Supreme Court's 1979 decision in Mackey v. Montrym, which upheld an essentially identical Massachusetts law given the state's compelling interest in highway safety and the relative reliability of a corroborated police officer's sworn report.

What was wrong with Senate Bill 508's hearing procedure, in the Attorney General's view?
The opinion flagged that Senate Bill 508 would have allowed a hearing to be scheduled as long as 30 days after a driver requested one, a longer delay than the Supreme Court had approved in Mackey, and suggested Maryland consider a shorter period, pointing to a 20-day standard the Supreme Court had accepted in a related case, Dixon v. Love.

Why did House Bill 1333's hearing process raise a due process problem even though it let the driver keep driving on a temporary permit?
The opinion found that House Bill 1333 let a driver present evidence at the hearing about the test refusal or blood alcohol level, but then required the Motor Vehicle Administration to continue the suspension regardless if it found the driver had in fact refused the test or tested over the limit, making the opportunity to present evidence effectively meaningless and therefore inconsistent with procedural due process.

Background and statutory framework

The opinion applied the three-part due process balancing test from Matthews v. Eldridge: the private interest affected, the risk of erroneous deprivation under the challenged procedure and the value of additional safeguards, and the government's interest, including administrative burden. It recognized, citing Mackey v. Montrym, Dixon v. Love, and Bell v. Burson, that a driver's license is a property interest protected by the Fourteenth Amendment's Due Process Clause, but found, following Mackey's analysis of a nearly identical Massachusetts implied-consent statute, that the relative brevity of the suspension, the availability of a prompt post-suspension hearing, and the reliability of a corroborated, sworn police report together meant no pre-suspension evidentiary hearing was constitutionally required. The opinion also surveyed other states' implied-consent statutes upheld against due process challenges, including California decisions like Hernandez v. Department of Motor Vehicles and a Rhode Island decision, Dana v. Petit, involving a license-exchange procedure similar to House Bill 1333's temporary permit.

Despite this general conclusion, the opinion identified concrete defects. For Senate Bill 508, it worried that a hearing available only up to 30 days after a driver's request ran "some constitutional risk" given Mackey's emphasis on immediate post-suspension review, and separately flagged that the bill's proposed amendment to Tr §16-205.1(g) appeared, by its wording, to allow an appeal only when a suspension was continued "without modification," seemingly cutting off appeal rights for drivers whose suspension was merely reduced or otherwise changed. For House Bill 1333, the opinion found an internal inconsistency between the provision letting a driver present evidence about the test refusal or blood alcohol result at a hearing and a separate provision requiring the Motor Vehicle Administration to continue the suspension regardless if it found the driver had refused the test or tested at or above 0.13 percent, making the evidentiary hearing an empty formality inconsistent with procedural due process.

Citations

Statutes:

• Tr §16-205.1 (administrative license suspension for chemical test refusal or intoxication)
• Tr §16-205.1(g) (as proposed to be amended by Senate Bill 508; appeal rights)
• Tr §16-205.1(g)(3) (as proposed by House Bill 1333; evidence at hearing)
• Tr §16-205.1(g)(4) (as proposed by House Bill 1333; mandatory continued suspension)
• Senate Bill 508 (1983; pretrial suspension effective before hearing)
• House Bill 1333 (1983; temporary permit pending hearing)
• Title 12, Subtitle 2 of this article (appeal procedure referenced by Senate Bill 508)

Cases:

• Matthews v. Eldridge, 424 U.S. 319 (1976)
• Mackey v. Montrym, 443 U.S. 1, 11 (1979)
• Dixon v. Love, 431 U.S. 105, 113 (1977)
• Bell v. Burson, 402 U.S. 535, 539 (1971)
• Mackler v. Alexis, 181 Cal. Rptr. 613 (Ct. App. 1982)
• Hernandez v. Department of Motor Vehicles, 177 Cal. Rptr. 566 (Cal. 1981)
• Burkhart v. Department of Motor Vehicles, 177 Cal. Rptr. 175 (Ct. App. 1981)
• Escobedo v. Department of Motor Vehicles, 222 P.2d 1 (Cal. 1950)
• Jones v. Schaffner, 509 S.W.2d 72 (Miss. 1974)
• Daneault v. Clarke, 309 A.2d 884 (N.H. 1973)
• Robertson v. State ex rel. Lester, 501 P.2d 1099 (Okla. 1972)
• Dana v. Petit, 386 A.2d 189 (R.I. 1978)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Vehicle Laws—Alcohol-Related Offenses—Constitutional Law—Due Process—Proposed Pretrial Administrative Suspension of Driver's License for Refusal to Take Alcohol Test or, Upon Taking Test, Being Found To Be Intoxicated, Not Unconstitutional.

March 10, 1983

The Honorable Elijah E. Cummings
The Honorable Robert G. Kramer
Maryland House of Delegates

You have each inquired as to the constitutionality and legal sufficiency of House Bill 1333 and Senate Bill 508.1 Both bills provide for the administrative suspension of an individual's driver's license, if the driver either refuses to take a chemical test for alcohol, or takes the test and is found to be intoxicated. However, the two bills differ in at least one respect: Senate Bill 508 would cause the suspension to become effective before the driver has an opportunity for a hearing, while House Bill 1333 would require issuance of a temporary permit pending a hearing.

Specifically, you ask whether either proposed bill deprives the individual of property without due process of law.

For the reasons set forth below, it is our view that both Senate Bill 508 and House Bill 1333 generally meet due process requirements. However, particular aspects of both bills raise questions that we urge be addressed by the General Assembly.

1 As introduced, Senate Bill 508 is identical to House Bill 880.

I
Background

A. Senate Bill 508

Senate Bill 508 would amend §16-205.1 of the Transportation Article ("Tr" Article) to authorize the Motor Vehicle Administration ("MVA") to issue a notice of license suspension upon receipt of a police officer's sworn statement that a driver (i) refused to submit to a chemical test for alcohol, or (ii) was determined, by test, to be intoxicated. The bill specifies the length of suspension, based on the driver's prior record, and also requires additional information to be given about the reason for, effective date of, and term of the suspension, as well as the availability of a hearing.

If requested, a hearing would be held within 30 days.2 At that time, the driver would be entitled to present evidence. The driver would have the right to appeal, if the suspension is continued without modification. At the hearing, the MVA would be authorized to alter or modify the initial suspension. For example, it could issue a restricted license, terminate the suspension upon a finding of not guilty, or give credit for time that the license has been suspended.

2 Failure to request or to appear at a requested hearing would result in automatic suspension for the length of time specified in the notice.

B. House Bill 1333

House Bill 1333 would amend Tr §16-205.1 to increase the length of time that a driver's license may be suspended. The bill would also authorize a police officer to take the individual's license and return it to the MVA, if, after being informed of the penalties for refusal, the individual refuses to submit to the chemical test, or evidences a blood alcohol content of equal to or greater than 0.13 percent.

The police officer would be required to advise the individual of his or her right to request a hearing within 15 days. The surrendered license would then be sent to the MVA by the officer within 48 hours, along with a sworn report of the incident.

The detained individual in turn would receive a temporary permit from the police officer. This permit would authorize the person to drive for 30 days or pending the outcome of the hearing.3

3 As in Senate Bill 508, failure to request or to attend a requested hearing would result in automatic suspension of the license.

At the hearing, the individual would be allowed to proffer evidence. Nonetheless, if the MVA found that the person either failed to take the chemical test or had a blood alcohol content level of equal to or greater than 0.13 percent, the Administration would be required to suspend the license until final disposition of the charge of driving while intoxicated.4 If the MVA imposed a suspension after a hearing, the individual would have the right to appeal.

4 In limited circumstances, entirely unrelated to submission to the tests or the presence or absence of alcohol in the driver's bloodstream, the MVA may modify the suspension.

II
The Due Process Clause

The Supreme Court, in Matthews v. Eldridge, 424 U.S. 319 (1976), articulated the following balancing test for determining what procedural safeguards are necessary to protect against erroneous deprivations of liberty or property interests: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." 424 U.S. at 335.

The Court has consistently recognized that suspension or revocation of a driver's license by the State involves a property interest protected by the Due Process Clause of the Fourteenth Amendment. Mackey v. Montrym, 443 U.S. 1, 11 (1979); Dixon v. Love, 431 U.S. 105, 113 (1977); Bell v. Burson, 402 U.S. 535, 539 (1971). The question, then, is the nature of the procedural safeguards required to protect this property interest.

In Mackey v. Montrym, 443 U.S. 1 (1979), the Court assessed the constitutionality of a Massachusetts implied consent law against a due process challenge. The Massachusetts statute authorized the Registrar of Motor Vehicles to summarily suspend a driver's license, upon receipt of a sworn, corroborated police report that the individual detained for driving while intoxicated had refused to submit to a chemical or breath-analysis test. However, unlike Senate Bill 508, the Massachusetts statute provided for an immediate postsuspension hearing, available from the moment that the driver surrendered his or her license. 443 U.S. at 8 n.5

Applying the factors set forth in Eldridge, the Court first identified the private interest affected by the state suspension as "the driver's interest ... in continued possession and use of his license pending the outcome of the hearing due him." Mackey, 443 U.S. at 11. In view of the relative brevity of the suspension, 90 days, and the availability of an immediate postsuspension hearing, the Court concluded that the nature of the private interest involved, although substantial, did not warrant an evidentiary hearing prior to adverse administrative action. 443 U.S. at 12. See also Dixon v. Love, 431 U.S. 105, 113 (1977).5

5 We note that Senate Bill 508 and House Bill 1333 each contains provisions for the modification of a suspension or the issuance of a restrictive license in instances of hardship, as did the Illinois statute upheld in Dixon. See also Mackey, 443 U.S. at 12.

The Court then considered the likelihood or risk of an erroneous license suspension as a consequence of the procedure used. Again remarking on the availability of the prompt, postsuspension review, the Court approved "pre-deprivation procedures . . . designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be", i.e., the corroborated, independently reviewed affidavit of a trained, experienced police officer that detailed both the probable cause for arrest and the refusal to submit to a chemical test. Mackey, 443 U.S. at 13, 14. Noting the relative infrequency of factual disputes over cause for arrest, the Court concluded that the risk of error inherent in the state's reliance upon the police report did not justify requiring a presuspension adjudicatory hearing. See also Dixon, 431 U.S. at 113-14.

The third factor of the Eldridge test requires an identification of the governmental function involved and the state's interest served by the summary suspension procedure, as compared to the costs resulting from the alternative procedure sought. Mackey, 443 U.S. at 17. Here, the Court strongly affirmed the state's interest in preserving the safety of its highways. See also Dixon, 431 U.S. at 114. The Massachusetts statute, enacted pursuant to the state's police function, not only served as a deterrent to drunk driving, but also furthered the state's interest in "obtaining reliable and relevant evidence for use in subsequent criminal proceedings". Mackey, 443 U.S. at 18. Finally, the law effectively resulted in prompt removal of hazardous drivers from the road. The Court stated: "The summary and automatic character of the suspension sanction available under the statute is critical to attainment of [the state's] objectives. A presuspension hearing would substantially undermine the state interest in public safety by giving drivers significant incentive to refuse the breath-analysis test and demand a presuspension hearing as a dilatory tactic. Moreover, the incentive to delay arising from the availability of a presuspension hearing would generate a sharp increase in the number of hearings sought and therefore impose a substantial fiscal and administrative burden on the [state]." 443 U.S. at 18. See also Dixon, 431 U.S. at 114.

In light of the state's compelling interest in highway safety, and the availability of a prompt, postsuspension hearing, the Supreme Court in Mackey upheld the constitutionality of the Massachusetts statute requiring summary suspension of the license of a driver who refuses to submit to a chemical test for alcohol.6

6 We here note that the proposed Maryland legislation does not contain many of the flaws pinpointed by Justice Stewart in his dissent.

Moreover, several state court decisions have also sustained similar laws against constitutional challenge. For example, a California statute that provides for summary suspension of a driver's license 10 days after receipt of a police report detailing the refusal of a driver to submit to a chemical test when lawfully arrested for drunk driving has been sustained against broad constitutional attack. See Mackler v. Alexis, 181 Cal. Rptr. 613 (Ct. App. 1982); Hernandez v. Department of Motor Vehicles, 177 Cal. Rptr. 566 (Cal. 1981); Burkhart v. Department of Motor Vehicles, 177 Cal. Rptr. 175 (Ct. App. 1981).

In Hernandez, the California Supreme Court conclusively rejected an individual's claim that, given the importance of the right to drive, the legislature should have achieved its purpose by less drastic means than a six-month license suspension. Referring to Mackey as well as past California cases, the court emphasized the legislature's broad police authority to regulate with respect to highway safety hazards: "Any appropriate means adopted by the state to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process." 177 Cal. Rptr. at 570 (quoting from Escobedo v. Department of Motor Vehicles, 222 P.2d 1 (Cal. 1950)).

In affirming the California statutory scheme, the court categorized as "specious" the petitioner's argument that the loss or regulation of a driver's license implicated interests important enough to trigger strict judicial scrutiny, rather than the "reasonable relation" standard that ordinarily applies to exercise of a state's police power. 177 Cal. Rptr. at 572, 573.

This reasoning is reflected in the decisions of other state courts. See, e.g., Jones v. Schaffner, 509 S.W.2d 72 (Miss. 1974) (revocation of driver's license because of refusal to take breath-analyzer test, availability of postsuspension hearing subject to judicial review comports with due process of law); Daneault v. Clarke, 309 A.2d 884 (N.H. 1973) (notice of suspension upon receipt of police report, hearing available within 10 days of request); Robertson v. State ex rel. Lester, 501 P.2d 1099 (Okla. 1972) (revocation upon sworn report of refusal to submit to blood alcohol test complies with due process).

The decision of the Rhode Island Supreme Court in Dana v. Petit, 386 A.2d 189 (R.I. 1978) is of particular pertinence to the constitutionality of House Bill 1333. In Rhode Island, when a driver refuses to submit to a breath-analyzer test, an administrative regulation provides for summary revocation of the license, unless the driver requests a hearing and surrenders the permanent license to the Division of Motor Vehicles in exchange for a temporary permit. The court found that the regulation did not violate petitioner's due process rights, because the individual at no time forfeits the ability to drive, pending resolution of the hearing. The court pointed out: "The use of this license exchange procedure serves the rational state objective of attempting to avoid problems inherent in recovering licenses of those operators against whom an adverse decision has been rendered by the division." 386 A.2d at 192.

In summary, based on Supreme Court decisions and state legislative and judicial precedent, we conclude that the mandatory license suspension provisions of Senate Bill 508 and House Bill 1333 do not clearly deprive an individual of property without due process of law.7

7 We understand that comparable legislation has been enacted in several other states. See U.S. Department of Transportation National Highway Traffic Safety Administration, Administrative Driver License Suspensions and Revocations Prior to Court Appearance (August 9, 1982).

III
Problems in the Legislation

A. Senate Bill 508

As we have noted, Senate Bill 508 would authorize the MVA to issue a notice of license suspension to a driver who, according to a sworn police report, either refused to take a chemical test or exhibited blood alcohol content of equal to or greater than 0.13 percent. If the driver requested a hearing within 15 days from receipt of the notice of suspension, the Administration would set the date within 30 days of the request.

In light of the Supreme Court's emphasis in Mackey upon the availability of an immediate postsuspension hearing [443 U.S. at 7, 12, 15, 18], a review process that may not take place for as long as a month after the driver's request runs some constitutional risk. We suggest that consideration be given to a shorter period within which the hearing would take place. See Dixon, 431 U.S. at 109-10 (postsuspension hearing available within 20 days after a written request).

Also, Tr §16-205.1(g) in Senate Bill 508 would be amended to provide as follows: "(g)(1) If the Administration imposes a suspension [after a hearing] IN ACCORDANCE WITH THIS SECTION AND, AFTER A HEARING REQUESTED BY THE INDIVIDUAL, THE ADMINISTRATION CONTINUES THE SUSPENSION WITHOUT MODIFICATION, the individual whose license or privilege to drive has been suspended may appeal the final order of suspension as provided in Title 12, Subtitle 2 of this article."

This wording appears to preclude an individual whose license suspension is reduced in duration or otherwise modified from appealing the MVA order. Such a denial of appeal rights would raise serious constitutional questions.

B. House Bill 1333

As we have noted, House Bill 1333 avoids any due process issue involving deprivation of a property interest. An individual who refuses or fails the chemical test for alcohol must surrender his or her permanent driver's license to the officer in exchange for a temporary permit. Pending the outcome of an evidentiary hearing, the individual retains the privilege to drive.

However, House Bill 1333 contains an inconsistency that presents a due process problem of different nature. As drafted, Tr §16-205.1(g)(3) would allow an individual to present evidence at the hearing about his or her (i) refusal to submit to the chemical test, or (ii) blood alcohol content at the time of the test. Subsection (g)(4), on the other hand, requires the Administration to continue the suspension unabated if it finds that the person charged either refused to take the test or had a blood alcohol content equal to or greater than 0.13 percent.

Thus, the individual's opportunity to present evidence appears to be meaningless, for the proffer could have no substantive effect on the disposition of the hearing. Such an empty opportunity is inconsistent with procedural due process.

IV
Conclusion

In summary, we believe that both Senate Bill 508 and House Bill 1333 are generally compatible with the requirements of due process, although each has particular provisions that should be redrafted to avoid constitutional questions.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel
Opinions and Advice
Lynette M. Phillips, Staff Attorney
Opinions and Advice
Avery Aisenstark, Chief Counsel
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Neither S.B. 508 nor H.B. 1333 were enacted. Nonetheless, because of the importance of the issues raised by the bills, the letter has been published here in a slightly revised format.